Supreme Court Judgments

Supreme Court of Canada

Antares Shipping Corporation v. The Ship ‘Capricorn’ et al., [1980] 1 S.C.R. 553

Date: 1979-12-13

Antares Shipping Corporation (Plaintiff) Appellant;

and

The Ship “Capricorn” (also known as the Ship “Alliance”), Portland Shipping Company Inc. and Delmar Shipping Limited (Defendants) Respondents.

1979: February 6 and 7; 1979: December 13.

Present: Laskin C.J. and Martland, Ritchie, Pigeon, Dickson, Beetz, Estey, Pratte and McIntyre JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Maritime law—Courts—Federal Court jurisdiction—Claim for specific performance of contract for sale of ship—Whether claim based on any existing federal law—Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 2, 22(1), 22(2)(a), 42, 44—British North America Act, s. 91(10).

The appellant’s action is for the enforcement of a contract for the sale of the respondent ship. On October 1, 1973, a judge of the Trial Division of the Federal Court held that the Federal Court was clothed with original jurisdiction over a claim such as this. On February 24, 1978, the Federal Court of Appeal set aside the judgment of the Trial Division. The Court of Appeal invoked the judgments in Quebec North Shore Co. v. Canadian Pacific Ltd., [1977] 2 S.C.R. 1054, and McNamara Construction (Western) Ltd. et al. v. The Queen, [1977] 2 S.C.R. 654, in which the Supreme Court held that in order for the Federal Court to have jurisdiction a case must involve the application of some existing federal law, whether statute or regulation or common law. The Court of Appeal saw no such existing federal law as providing the foundation for claims of the kind asserted by appellant’s action. Hence the appeal to this Court.

Held: The appeal should be allowed.

The provisions of s. 22(2)(a) of the Federal Court Act which provides that the Trial Division has jurisdiction with respect to “any claim as to title, possession or ownership of a ship” constitute existing federal statutory law coming within the class of subject of navigation and shipping and expressly designed to confer jurisdiction on the Federal Court for claims of the kind advanced by the appellant. The claim here being one as to the appellant’s entitlement to possession of a ship, it is

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within the jurisdiction of the Federal Court. When the Federal Court of Appeal concluded that s. 22(2)(a) should not be construed as including an action for the specific performance of a contract of sale, that conclusion reflected the strong influence which the American authorities had on the Federal Court of Appeal’s approach to the problem. The adoption of the American doctrine was contrary to the English practice which forms the foundation of Canadian maritime law. The express authority conferred on the Federal Court by s. 44 of the Federal Court Act to grant an order for specific performance is a further circumstance which puts the jurisdiction of the Federal Court in this action beyond question.

Quebec North Shore Co. v. Canadian Pacific Ltd., [1977] 2 S.C.R. 1054, 71 D.L.R. (3d) 111; McNamara Construction (Western) Ltd. et al. v. The Queen, [1977] 2 S.C.R. 654 distinguished: R. v. Canadian Vickers Ltd., [1978] 2 F.C. 675, 77 D.L.R. (3d) 241; MacMillan Bloedel Ltd. v. Canadian Stevedoring Co. Ltd., [1969] 2 Ex. C.R. 375; Tropwood et al. v. Sivaco Wire & Nail Co. et al., [1979] 2 S.C.R. 157, aff’g [1978] 2 F.C. 720, 78 D.L.R. (3d) 529; Silver v. The Sloop Silver Cloud (1966), 259 F. Supp. 187; Hart v. Herwig (1873), L.R. 8 Ch. App. 860; Robillard v. The Sailing Sloop St. Roch and Charland (1921), 21 Ex. C.R. 132, referred to.

APPEAL from a judgment of the Federal Court of Appeal[1] setting aside an order of the Trial Division[2]. Appeal allowed.

Guy Vaillancourt and Raynold Langlois, for the appellant.

Gilles de Billy, Q.C., for the respondents Capricorn and Portland Shipping.

Sean Harrington, for the respondent Delmar Shipping.

The judgment of the Court was delivered by

RITCHIE J.—This is an appeal from a judgment of the Federal Court of Appeal dated February 24, 1978 which set aside an order made by the Trial Division of that Court on October 1, 1973 and ordered that the Statement of Claim be struck out and the action dismissed on the ground that the

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Federal Court was without jurisdiction to entertain the claim of the plaintiff (appellant) herein.

This action was originally instituted as an action in rem against the ship Capricorn seeking a declaration that the sale of that ship from Delmar Shipping Inc. (hereinafter referred to as Delmar) to Portland Shipping Co. Inc. (hereinafter referred to as Portland) registered on June 5, 1973 with the Liberian Registrar of Shipping in New York while the ship was at sea, was null and void on the ground that the ship was then the subject of a concluded sale from Delmar to the appellant Antares Shipping Corporation evidenced by a Norwegian Sale Form dated May 3, 1973 whereby and whereunder the appellant became entitled to delivery and possession of the ship.

At the hearing of this appeal it was agreed by all concerned that as the sole issue herein relates to the jurisdiction of the Court, the matter should proceed on the assumption that allegations of fact contained in the second amended declaration filed by the appellant on November 7, 1973 were true and the statements contained in that document which appear to me to be most relevant in the consideration of this appeal may be summarized as follows:

1. An agreement by Delmar to sell the ship to the appellant Antares Shipping Corporation was entered into on April 7, 1973 and a memorandum of that agreement was, as I have indicated, issued in London on May 3, 1973 on a Norwegian Sales Form setting out inter alia a price in U.S. dollars and the requirement of a deposit of 10 per cent of that price by the purchaser.

2. It was also provided that the buyers, i.e. Antares, “have right to declare the sale finalized or not within midnight London time, Thursday 17th of May 1973” and the appellant declared the sale finalized by telex sent to the agents of Delmar at about 20:34 hours on that date.

3. On the 21st of May, 1973, the appellant’s bankers transferred 10 per cent of the purchase price stipulated for the vessel to the National Bank of North America in New York for the joint account of Delmar and Antares, but on the

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same day the appellant was advised that Delmar had withdrawn the ship from the market and this was followed by advice that Delmar refused to carry out its obligations under the agreement for sale and that the 10 per cent deposit made by the appellant had been refused on instructions from Delmar. Within a few days (June 5, 1973) it became apparent that Delmar had sold the ship to Portland which was either owned or controlled by the same interests as Delmar for the sum of $10 and that the sale had been registered with the Registrar of Shipping of the Republic of Liberia in New York.

Based on these and many other allegations, the appellant claimed for a declaration that the sale to Portland was null and void and that the ship belongs to Delmar. The order sought by the appellant in its declaration contains the following paragraphs:

DECLARING THAT the Sale of the DEFENDANT SHIP to the PORTLAND SHIPPING COMPANY INC. registered on June 5, 1973, with the Liberian Registrar of Shipping in New York is null and void, and THAT said DEFENDANT SHIP belongs to DELMAR SHIPPING LIMITED;

DECLARING THAT the sale of the DEFENDANT SHIP to the PLAINTIFF has been concluded under the NORWEGIAN SALEFORM (revised 1966) issued at London on May 3, 1973, as amended, between DELMAR SHIPPING LIMITED as SELLERS and SEBASTIANO RUSSOTTI for the account of PLAINTIFF as Buyers;

DECLARING THAT the PLAINTIFF has made good and sufficient payment of the 10% deposit of the purchase price or MAKING such other Order regarding payment as the Court may deem just in the circumstances;

ORDERING THAT the owners of the DEFENDANT SHIP Messrs. DELMAR SHIPPING LIMITED deliver the duplicate copy of the memorandum of agreement as amended and duly signed, deliver the DEFENDANT SHIP to the PLAINTIFF within eight (8) days of the Order and, in exchange of the payment of the purchase money by the PLAINTIFF, furnish the PLAINTIFF with legal Bill of Sale of the LIBERIAN MOTOR TANKER CAPRICORN, registered in Monrovia, REPUBLIC OF LIBERIA, together with a certificate of deletion from the Ship’s register, failing which the judgment to intervene is to take the place of a deed of sale in favour of the PLAINTIFF of the said DEFENDANT SHIP, free and clear of all encumbrances

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upon payment being made into Court by PLAINTIFF of the purchase money less any amount required to discharge the registered encumbrances.

The question which lies at the heart of this appeal is whether or not the Federal Court is clothed with jurisdiction to entertain an action for the enforcement of a concluded contract for the sale of a ship by delivery and by the execution of a bill of sale thereof.

The effect of the judgment of the learned trial judge was to order Delmar and Portland to be joined as defendants in the action against Capricorn subject to the pleadings in that action being served on those companies, the head offices of both of which were outside of Canada. Upon application being made for service ex juris on these companies, the Federal Court, in the Trial Division and the Court of Appeal thereof, denied the application but on appeal to this Court those judgments were reversed. These steps in the action are described in the reasons for judgment of Mr. Justice LeDain as follows:

Following their order Antares applied to the Trial Division for leave to serve Delmar and Portland out of the jurisdiction but leave was refused. This order was confirmed by the Court of Appeal. On appeal to the Supreme Court of Canada the judgments of the Trial Division and Court of appeal were set aside, and it was directed that an order for service ex juris be issued. An order was issued by the Trial Division, and Delmar and Portland were served. They have appeared and have taken part in what is now an action in personam as well as in rem. (The italics are my own.)

The learned trial judge adopted the view that a claim such as this falls within the exclusive legislative authority of Parliament under s. 91(10) of the British North America Act which assigns the subject of “navigation and shipping” to that authority and he found also that the claim was one for relief made “under or by virtue of Canadian maritime law or any other law of Canada relating to any matter coming with the class of subject of navigation and shipping” within the meaning of s. 22(1) of the Federal Court Act (hereinafter referred to as the “Act”) so that the Trial Division was

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clothed with original jurisdiction over it. In this regard the learned trial judge said:

…the jurisdiction of this Court in maritime matters under section 22(1) is co-extensive with the legislative power of Parliament over ‘navigation and shipping’; it is not limited to the matters coming within that subject on which Parliament has acutally legislated.

In setting aside the judgment based on this reasoning, Mr. Justice LeDain, speaking on behalf of the Court of Appeal, invoked the judgments of this Court in Quebec North Shore Company v. Canadian Pacific Limited[3], and McNamara Construction (Western) Limited et al. v. The Queen[4], saying:

As a result of the judgments of the Supreme Court of Canada in the Quebec North Shore Paper Company and McNamara Construction cases, the conclusion of the Trial Division on the question of jurisdiction can no longer be supported on the ground that was relied on by the learned trial Judge, namely, that the subject matter of the action falls within the legislative competence of the Parliament of Canada. The Supreme Court has held in these cases that in order for the Federal Court to have jurisdiction a case must involve the application of some ‘existing federal law, whether statute or regulation or common law’.

Section 22(1) of the Act to which reference is made in the reasoning of the learned trial judge, reads as follows:

22. (1) The Trial Division has concurrent original jurisdiction as well between subject and subject as otherwise, in all cases in which a claim for relief is made or a remedy is sought under or by virtue of Canadian maritime law or any other law of Canada relating to any matter coming within the class of subject of navigation and shipping, except to the extent that jurisdiction has been otherwise specially assigned.

This section must be read in light of s. 2 which defines Canadian maritime law as follows:

2. In this Act

…

‘Canadian maritime law’ means the law that was administered by the Exchequer Court of Canada on its Admiralty side by virtue of the Admiralty Act or any other

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statute, or that would have been so administered if that Court had had, on its Admiralty side, unlimited jurisdiction in relation to maritime and admiralty matters, as that law has been altered by this or any other Act of the Parliament of Canada;…

Section 42 of the Act is also relevant in that it provides that:

42. Canadian maritime law as it was immediately before the 1st day of June 1971 continues subject to such changes therein as may be made by this or any other Act.

After citing these sections of the Act, Mr. Justice LeDain observed:

By these provisions Canadian maritime law is recognized as existing federal law applicable in the exercise of the Court’s admiralty jurisdiction. It is unnecessary here to go over the historical ground that has been covered in recent decisions which have considered the nature of Canadian maritime law and when it may be considered to have first become part of the law of Canada. The question in the present case is whether this body of law recognizes the kinds of claim that are asserted by Antares’ action. We have not been referred to ‘any other law of Canada relating to any matter coming within the class of subject of navigation and shipping’ as providing the foundation for claims of this kind.

With all respect, I am on the contrary of opinion that the provisions of s. 22(2)(a) of the Act constitute existing federal statutory law coming within the class of subject of navigation and shipping and expressly designed to confer jurisdiction on the Federal Court for claims of the kind here advanced by the appellant. That section reads:

22. (2) Without limiting the generality of subsection (1), it is hereby declared for greater certainty that the Trial Division has jurisdiction with respect to any claim or question arising out of one or more of the following:

(a) any claim as to title, possession or ownership of a ship or any part interest therein or with respect to the proceeds of sale of a ship or any part interest therein;… (The italics are my own.)

Like Mr. Justice LeDain, I do not find it necessary to go over the historical ground covered in the

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recent decisions to which he refers. These decisions include the judgment of Thurlow A.C.J., in R. v. Canadian Vickers Limited[5], and that of Chief Justice Jackett in MacMillan Bloedel Limited v. Canadian Stevedoring Company Limited[6], and a further historical review is to be found in the judgment of Mr. Justice Walsh in Sivaco Wire and Nail Company v. Atlantic Lines & Navigation Company Inc.[7], which latter judgment was expressly affirmed in the reasons for judgment of the Chief Justice of this Court delivered when that case was appealed under the name of Tropwood A.G. and the Owners of the Vessel Tropwood v. Sivaco Wire & Nail Company and Atlantic Lines & Navigation Company, Inc.[8], and wherein the Chief Justice again reviewed the admiralty jurisdiction of the Federal Court in finding that it was within that Court’s jurisdiction to entertain an action framed both in contract and in tort arising out of damage to an inbound cargo shipped by sea from France to Montreal. I respectfully adopt what the Chief Justice said in this regard in that case and note particularly that he finally concluded that as the case was admittedly governed by the Federal Court Act

…it is that Act to which we must look to determine whether the jurisdiction now reposed in the Federal Court to try what I may compendiously call admiralty matters relates to a body of law, which can be attributed to federal competence, upon which the jurisdiction can operate.

In the Tropwood case jurisdiction was found to reside in the trial division of the Federal Court by reason of the specific claims referred to in s. 22(2)(e), (h) and (i) of the Act by subs. 2 (h) of which it is declared that the trial division has jurisdiction with respect to any claim or question arising out of

(h) any claim for loss or damage to goods carried in or upon a ship including without restricting the generality of the foregoing loss of or damage to passengers’ baggage or personal effects.

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The same reasoning leads me to the conclusion that the claim here being one as to the appellant’s entitlement to possession of a ship, it is within the jurisdiction of the Federal Court pursuant to s. 22(2)(a).

In the course of his reasons for judgment in the Court of Appeal, Mr. Justice LeDain stated the matter at issue as he saw it in the following paragraph:

The question of jurisdiction is whether these claims or any of them may be said to be a ‘claim as to title, possession or ownership’. What Antares seeks, broadly speaking, by its claim for specific performance is to obtain the ownership and possession of the ship. As such, it may appear to be asserting a claim as to ownership and possession within the meaning of s. 22(2)(a). The issue, as I see it, is whether s. 22(2)(a) should be construed as contemplating only petitory and possessory actions, strictly speaking, or whether it should be construed as including an action for the specific performance of a contract of sale. (The italics are my own.)

The learned judge concluded that the subsection should not be construed “as including an action for the specific performance of a contract of sale”. This conclusion, which is basic to the reasoning of the Court of Appeal, appears to me to reflect the strong influence which the American authorities on admiralty jurisdiction had upon Mr. Justice LeDain’s whole approach to the problem. This is made plain in the succeeding paragraphs of the reasons for judgment in the Court of Appeal where it is said:

The American courts of admiralty have long held that they have jurisdiction with respect to petitory and possessory actions, which were defined by Story J. in The “Tilton”, 5 Mason 465, Fed. Cas. No. 14054 (C.C. Me 1855, as follows:

Suits in the admiralty, touching property in ships, are of two kinds: one called ‘petitory’ suits, in which the mere title to the property is litigated, and sought to be enforced, independently of any possession, which has previously accompanied or sanctioned that title; the other called ‘possessory’ suits, which seek to restore to the owner the possession of which he had been unjustly deprived. When that possession has followed a legal title, or as it is sometimes phrased, when there has

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been a possession under a claim of title with a constat of property.

At the same time it is well established that the American courts of admiralty do not have power to order specific performance of a contract or to enforce equitable interests. It has been further held that a contract for the sale of a ship is not a maritime matter within the jurisdiction of admiralty, and this doctrine has been applied to decline admiralty jurisdiction in actions for damages for breach of contract.

The Court of Appeal further cited at length from the case of Silver v. The Sloop Silver Cloud[9], which is to the same effect.

I have been unable to find any Canadian authority adopting the approach taken by the American courts in this regard although there is a considerable body of opinion in the United States itself which does not subscribe to the exclusion of a contract for the sale of a ship from admiralty jurisdiction. Mr. Justice LeDain however, expressed himself as follows, after quoting a substantial body of American case law:

The question, as I see it, is whether there is anything in the history and content of Canadian Maritime law and in the language and statutory context of section 22(2)(a) that require us to give a broader meaning to the claims specified in that head of jurisdiction so as to include the claim for specific performance in the present case.

In finding that s. 22(2)(a) does not have the effect of including a claim such as the one for specific performance in the present case, Mr. Justice LeDain has, as I have indicated, based his reasoning in great measure upon the American authorities which he appears to me to adopt in the following excerpt from his reasons for judgment:

Despite the criticism of the American doctrine that a contract for the sale of a ship is not a maritime matter I am not persuaded that there are compelling reasons for adopting a contrary view.

This adoption of the American doctrine appears to me to run contrary to the English practice which, as I have indicated, forms the foundation of Canadian maritime law.

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In this regard it is pointed out in Roscoe’s work on The Admiralty Jurisdiction and Practice of High Court of Justice, 5th ed. 1931 (at p. 39) that:

This jurisdiction is now, by the Supreme Court of Judicature (Consolidation) Act, 1925, vested in the High Court, and is assigned to the Probate Division. In pursuance of the authority thus conferred upon it, the Court of Admiralty acquired ample jurisdiction to adjudicate upon all questions of title, and wherever it became necessary it would inquire into the validity of an alleged sale, or concerning any other circumstances which affected the right of the property in the ship. (The italics are my own.)

This is the jurisdiction administered by the Federal Court under the provisions of the Federal Court Act to which I have referred.

It is interesting from an historical point of view to consider the admiralty jurisdiction administered by the Court of Chancery in England in earlier days. This is exemplified by the case of Hart v. Herwig[10], the head note of which reads:

A shipowner of Hamburg made, at Hamburg, an agreement with a domiciled Englishman for the sale to the Englishman of a Hamburg ship whenever she might return from the voyage on which she then was. The ship returned and was by the owner ordered to proceed to Sunderland. The master of the ship, who was authorized by the shipowner to act as his agent in the sale, refused to deliver the ship except on certain terms. The purchaser filed a bill against the owner and the master for specific performance. He obtained leave to substitute service on the master for the owner, and moved for an injunction to restrain the Defendants from removing the ship out of the jurisdiction:

Held, that substituted service on the master was effectual and proper:

Held, that the Court had jurisdiction to restrain the Defendants from removing the ship, and injunction granted.

Order of Malins, V.C. affirmed.

In the concluding paragraph of his reasons for judgment Mellish, L.J. had this to say:

I am clearly of opinion that we are not in the least degree infringing any rule of the law of nations by saying that this Court, which is the only Court which can compel the actual specific performance of the con-

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tract, has jurisdiction in this case. It is peculiarly a case for the interference of this Court, inasmuch as if specific performance were denied to the Plaintiff he, practically, would get no justice at all,… (The italics are my own.)

The Canadian position as of 1921 was reviewed by Mr. Justice Maclennan in Robillard v. The Sailing Sloop St. Roch and Charland[11], where possession of the ship was ordered to be delivered to the plaintiff and existing bill of sale set aside. The learned judge there said:

The first important question to be decided is:—Is it the Maritime Law of England or the Canadian Law which governs the rights of the parties in respect to plaintiff’s claim for title and possession of the sailing sloop St. Roch? The Exchequer Court of Canada as a Court of Admiralty is a court having and exercising all the jurisdiction, powers and authority conferred by the Colonial Courts of Admiralty Act, 1890 (Imp.), over the like places, persons, matters and things as are within the jurisdiction of the Admiralty Division of the High Court in England, whether exercised by virtue of a statute or otherwise, and as a Colonial Court of Admiralty it may exercise such jurisdiction in like manner and to as full an extent as the High Court in England.

In The Gaetano and Maria 7 P.D. 137, Brett, L.J. at p. 143, said:—

The law which is administered in the Admiralty Court of England is the English Maritime Law. It is not the ordinary municipal law of the country, but it is the law which the English Court of Admiralty, either by Act of Parliament or by reiterated decisions and traditions and principles, has adopted as the English Maritime Law.

Although the Exchequer Court in Admiralty sits in Canada it administers the Maritime Law of England in like manner as if the cause of action were being tried and disposed of in the English Court of Admiralty.

The plaintiff’s action is based upon section 4 of the Admiralty Court Act, 1840 (3-4 Vict., ch. 65 Imp.), which provides that the Court of Admiralty shall have jurisdiction to decide all questions as to the title to or ownership of any ship or vessel arising in any cause of possession which shall be instituted in the said Court after the passing of that Act. This is a cause of possession.

26 Halsbury’s Laws of England, p. 15, says:—

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Ownership in a British ship or share therein may be acquired in any of three ways—by transfer from a person entitled to transfer, by transmission or by building. Acquisition by transfer and transmission have been the subject of statutory enactment. Acquisition by building is governed by the common law. Ownership in a British ship or share therein is a question of fact and does not depend upon registration of title. Whether registered or unregistered, a person in whom ownership in fact vests is regarded in law as the owner if registered, as the legal owner; if unregistered, as the beneficial owner.

After discussing the facts, Mr. Justice Maclennan concluded by saying:

The right of the court in a case like this to inquire into the validity of the bills of sale and into all other circumstances affecting the right of property in the sloop is clearly recognized in the Maritime Law of England, as will appear from a reference to the following cases: The Victor 13 L.T. 21; The Empress, Swabey 160; The Margaret Mitchell, Swabey 382; Gardner v. Gazenove 1 H. & N. 423, 435 & 436; Ward v. Dickson 28 L.J. Ch. 516, 520; Holderness v. Lamport 30 L.J. Chan. 489 & 490; Ward v. Beck, 32 L.J. C.P. 113 & 116; The Innisfallen, L.R. 1 A. & E. 72; The Jane 23 L.T., N.S. 791; The Rose L.R. 4 A. & E. 6.

It will be seen that I am, with all respect, unable to agree that the American doctrine should be applied in Canada or that s. 22(2)(a) of the Federal Court Act is to be so restrictively interpreted as to exclude from its ambit actions claiming specific enforcement of a contract entitling the claimant to “title, possession or ownership of a ship”.

There is, however, a further circumstance which in my view puts the jurisdiction of the Federal Court in this action beyond question and that is the express authority entitling the Federal Court to grant an order for specific performance which is to be found in s. 44 of the Act which reads:

44. In addition to any other relief that the Court may grant or award, a mandamus, injunction or order for specific performance may be granted or a receiver appointed by the Court in all cases in which it appears to the Court to be just or convenient to do so, and any such order may be made either unconditionally or upon

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such terms and conditions as the Court deems just. (The italics are my own.)

This provision appears to me to govern the circumstances of the present case, but Mr. Justice LeDain merely makes glancing reference to the section in the course of the following paragraph of his reasons for judgment:

The Admiralty Court in England and the Federal Court²² have, of course, the power to order specific performance and to enforce equitable interests, and this may appear sufficient to distinguish the American law in respect of the issues in this appeal, but it does not follow merely from the existence of this power in appropriate cases that an action for the specific performance of an agreement to sell, in which there is a clear intention that the propery is to pass by subsequent bill of sale, should be considered to be a claim as to ownership within the meaning of s. 22(2)(a).

²² Federal Court Act, s. 44.

With all respect, I must confess that I am one of those to whom it appears that the jurisdiction over actions for specific performance expressly conferred on the Federal Court by s. 44 of the Act does indeed serve to distinguish the American law in respect of the issues in this appeal and that under that section the Federal Court is empowered to grant relief by way of specific performance in all cases in which it appears to it to be just and convenient to do so.

As I have indicated, I am of opinion that the construction placed on s. 22(2)(a) by the Court of Appeal is an unduly narrow one. The claim here is for a declaration that the ship belongs to the respondent Delmar and for an order requiring that company to “deliver the defendant ship to the plaintiff”. We are not concerned here with the merits of the claim; the sole question at issue is whether the Federal Court is clothed with jurisdiction to entertain it and as any claim for delivery, however it may arise, is necessarily a claim of entitlement to transfer of possession and s. 22(2)(a) expressly confers jurisdiction over “any claim or question arising out of a claim to title, possession or ownership of a ship”, I am satisfied that the Federal Court has jurisdiction over the

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subject matter of this appeal and I would accordingly allow the appeal and set aside the judgment of the Federal Court of Appeal.

The appellant is entitled to its costs in this Court and in the Federal Court of Appeal.

Appeal allowed with costs.

Solicitors for the appellant: Langlois, Drouin, Roy, Fréchette and Gaudreau, Quebec.

Solicitors for the respondents Capricorn and Portland Shipping: Gagnon, de Billy, Cantin, Dionne & Martin, Quebec.

Solicitors for the respondent Delmar Shipping: McMaster, Meighen, Montreal.